Jolley v. Dunlop

147 N.W. 980 | S.D. | 1914

GATES, J.

This is an action against a sheriff for the conversion of certain wheat and oats. The complaint alleges that the plaintiff was the owner and in possession' of the grain, the unlawful taking and' conversion by defendant and the amount of plaintiff’s damage. The answer was a general denial and a justification by reason of levies on the property under warrants of attachment issued against the property of the husband of the plaintiff. The defendant, called as an adverse witness under the statute tes•tified that plaintiff was in possession and claimed ownership' of the property at the -time he made the levies. It appears that at that time the grain, had 'been severed- from the ground and was in the shock. The levies were made upon the undivided one-half of the grain, the other half belonging to- the landlord. In addition to the other ¡matters of justification evidence was offered on behalf of defendant tending to show ownership of the property in plaintiff’s husband. The jury returned a general verdict in favor of defendant and also a special verdict in which they found1 that plaintiff was in possession of the property at the time of the levies; but that she held it as the property of her husband. From1 the judgment and order denying .a new trial plaintiff' appeals;

The assignments of error relate to alleged errors in admitting evidence and in refusing plaintiff’s motion for a directed1 verdict. Appellant contends; First: That the possession of the property attached gave plaintiff the right to maintain an action for conversion, and evidence of .possession is evidence of ownership, conclusive upon tire whole world except the -true owner, or one claiming under him' by virtue of a lien. Second: That no lien attached by reason of the attempted attachment because no certified copy of the warrants of attachment were served. Third: If any lien attached by reason of the attachment proceedings the same was lost by the sheriff .turning over the property to the plaintiff in the attachment action. Fourth-: That such lien, i-f any, was lost by the failure of the sheriff to. file inventory as prescribed by Section 211 of the Code -of Civil Procedure.

[1] Appellant is unquestionably right in asserting that the mere possession of the property authorized her to bring the action. 38 Cyc. 2044. But, although she might maintain the -action, she could not recover, if her husband -wa-s the owner of the property, unless" the sheriff was a wrongdoer or lost his lien upon the property iby failure to comply with the statute. The jury found' that her husband was the owner of the property. The sufficiency of the evidence to sustain the verdict in- this -respect -has not been challenged, .therefore the only- questions for -us to -determine are whether the sheriff .proceeded under the warrants of attachment in accordance with law.

[2, 3] Appellant is wrong in her second contention. The grain had been severed from the ground and was therefore capable of manual delivery. Therefore the provision of law requiring the 'service of a certified copy of the warrant of attachment was not applicable. Nor did1 the fact that the 'ownership of -an undivided half of the .property was in the landlord ohange the situation. 25 Cyc. 1654; Shinn on Attachment & Garnishment §211.

[4, 5] The third contention of appellant is one which is solved ■by the verdict. There was no error in refusing to direct the verdict on this ground. While the sheriff turned1 over the -property to one of the attaching creditors, there was evidence -which, if believed by the jury, justified it in -concluding that such possession was as the agent of the sheriff. There is some evidence which would lead one to believe that the grain might have been sold by the attaching creditor or his attorney -at .private sale, but the appellant does not purport to bring all of the evidence' into the printed record, and' we may not resort to conjecture in order to overturn the verdict and judgment. It was incumbent upon appellant to bring up so much of (the record as would affirmatively show -error in- 'this res-peot. She has not -done so. Therefore, we must -presume that the verdict and judgment are right in -that behalf.

[6] Section 211, Code of -Civil Procedure, requires the sheriff upon making -a levy to immediately make a just and true inventory of all the -property seized, setting forth the estimated value of the several articles and kinds of personal property “which inventory must be signed by the sheriff and attached to and made a part of the return of -the warrant of attachment.” The -returns- of -sheriff upon the warrants of attachment contained a list of the property levied upon, but did not -state its value. It is the contention of appellant that th-e returns -made were simply the returns required by la-w to be made to the warrants -of attachment; and that they were not and did not -purport to be inventories; that the language of the statute quoted contempla-tes a separate paper -denominated an inventory which is to be -signed by the sheriff and attached to and filed with the return. Respondent contends that an inventory is a -list -of property and that if suoh- list is -contained in and- as a part of the return, it nevertheless is an inventory and that the failure to give the value -therein was not a jurisdictional defect. A similar situation appears to have been presented to this court .in the case of Chaffe v. Runkel, 11 S. D. 333, 77 N. W. 583. It was there substantially held that such list of property in the return to a warrant of attachment was an inventory, and that the s'ame was amendable for the purpose of inserting values. Whatever view we might have held, were this a case of first impression, we feel that such 'decision is binding upon us as a settled question of practice and therefore we are constrained to hold that there was an inventory and that as against this collateral attack the failure to' show value therein was not material.

The judgment and order denying a new trial are affirmed.

WHITING, J., taking no part herein.